Ark. Code Ann. § 8-4-227 (2020)
Appeal — Review by circuit court
- The appeal shall be heard and determined by the circuit court upon the issues raised by the notice of appeal and response according to the rules relating to the trial of civil actions, so far as applicable.
- If, before the date set for the hearing, application is made to the circuit court for leave to present additional evidence and the circuit court finds that the evidence is material and that there were good reasons for failure to present it in the proceeding before the Arkansas Pollution Control and Ecology Commission, then the circuit court may order that the additional evidence be taken before the commission upon such conditions as may be just. The commission may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing circuit court.
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- The review shall be conducted by the circuit court without a jury and shall be confined to the record.
- However, in cases of alleged irregularities in procedure before the commission that are not shown in the record, testimony may be taken before the circuit court.
- The circuit court shall, upon request, hear oral argument and receive written briefs.
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The circuit court may affirm the decision of the commission or vacate or suspend the decision, in whole or part, and remand the case to the commission for further action in conformity with the decision of the circuit court if the action of the commission is:
- In violation of constitutional or statutory provisions;
- In excess of the commission's statutory authority;
- Made upon unlawful procedure;
- Affected by other error of law;
- Not supported by substantial evidence of record; or
- Arbitrary, capricious, or characterized by abuse of discretion.
History. Acts 1949, No. 472, [Part 1], § 5; 1985, No. 284, § 1; A.S.A. 1947, § 82-1906; Acts 1995, No. 895, § 3; 1997, No. 896, § 3; 1997, No. 1219, § 5; 2013, No. 1021, § 7.
Amendments. The 2013 amendment inserted “circuit” before “court” throughout the section and added the (c)(1)(A) and (B) designations.
Case Notes
Constitutionality.
Former provision of this section was unconstitutional to the extent that it authorized the circuit court to review de novo matters of executive discretion. Ark. Comm'n on Pollution Control & Ecology v. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984) (decision prior to 1985 amendment).
Applicability.
Subdivision (d)(5) of this section addresses appeals from the Arkansas Pollution Control and Ecology Commission to circuit court and not appeals to the Arkansas Supreme Court. Gurley v. Mathis, 313 Ark. 412, 856 S.W.2d 616 (1993).
Evidence.
Subdivision (c)(1)(B) of this section does not grant an appellate court authority to hear additional evidence; therefore, the appellate court did not address a concern over losing the opportunity to present additional evidence in a case relating to the granting of a permit to operate a steel mill. Nucor Steel-Arkansas v. Ark. Pollution Control & Ecology Comm'n, 2015 Ark. App. 703, 478 S.W.3d 232 (2015).
Scope of Review.
Court erred by substituting its judgment for that of the commission and in exceeding the statutory limits upon its authority to review the commission's order. Ark. Comm'n of Pollution Control & Ecology v. Husky Indus., Inc., 293 Ark. 249, 737 S.W.2d 157 (1987).
Finding that the commission “did not give proper consideration” to the threat to the economies of the communities involved posed by “strict compliance” is not a basis upon which review was permitted. Ark. Comm'n of Pollution Control & Ecology v. Husky Indus., Inc., 293 Ark. 249, 737 S.W.2d 157 (1987).
Standard of Review.
Arkansas Pollution Control and Ecology Commission's order approving landfill's application to expand was properly upheld by a trial court pursuant to subsection (d) of this section because the Commission had correctly concluded that the Arkansas Tri-County Solid Waste District Board's denial of a certificate of need due to the geology of the area was improper; there was substantial evidence to support the Commission's decision. Tri-County Solid Waste Dist. v. Ark. Pollution Control & Ecology Comm'n, 365 Ark. 368, 230 S.W.3d 545 (2006).